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Perna v. Pirozzi

Decided: January 11, 1982.


On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Bischoff, King and Polow. The opinion of the court was delivered by King, J.A.D.


This is an appeal from a verdict of no cause for action in a medical malpractice case. Plaintiffs-appellants raise several claims of legal error. They challenge R. 4:21 -- "Professional Liability Claims Against Members of Medical Profession; Procedure," claiming "it contravenes the constitutional guarantees of equal protection; . . . violates the constitutional mandate of separation of powers; . . . [and] constitutes a denial of due process." They also claim error in certain exclusionary evidentiary rulings and in the supplemental charge to the jury. We treat the final point first.

On May 8, 1977 plaintiff Thomas Perna was admitted by a family physician to St. Joseph's Hospital. A urological consultation was sought with Dr. Michael Pirozzi, who practiced in a

medical group of urological surgeons with Dr. Del Gaizo and Dr. Ciccone. Dr. Pirozzi initially had seen Thomas Perna in his office for a bladder infection during the mid-1960s. After admission to St. Joseph's Hospital in 1977 and upon examination and consultation an operation for kidney stones (right pyelolithotomy) was recommended.

A written consent to operate was executed by Thomas Perna in the sole presence of a urological resident, Dr. Karamooz, on May 17. The written consent form authorized surgery by Dr. Pirozzi alone; it did not mention the other members of his group, Dr. Del Gaizo or Dr. Ciccone. Dr. Karamooz did not testify at trial. The operation was performed on May 18, 1977 by Dr. Del Gaizo, assisted by Dr. Ciccone.

Post-surgical complications resulted which ultimately led to this lawsuit ending in a verdict for defendants. Plaintiffs alleged medical bills of $27,000 and substantial residual disability attributable to defendants' malpractice. During the pendency of the malpractice suit a R. 4:21 panel hearing was held; a finding adverse to plaintiffs on the issue of negligence was returned by the panel and was reported to the jury. The alleged informed consent issue was not submitted to the R. 4:21 panel.

During the eight-day trial plaintiffs contended that the three defendants were negligent during the performance of the original surgery of May 18, during the follow-up surgery of June 24 and during all post-operative care consequent upon those procedures. Plaintiffs further claimed that defendants were guilty of a violation of the doctrine of informed consent because Dr. Pirozzi did not perform the May 18 surgery despite his sole authority to do so. In rejoinder, defendant-doctors contended that actual authority to operate had been extended by implication to all three members of the group; they said there was no understanding that only Dr. Pirozzi could operate but the parties understood that any one of the group could operate assisted by any other. They conceded that the surgery was scheduled and performed on Dr. Pirozzi's day off.

The case was submitted to the jury on two theories of liability: (1) standard medical malpractice -- deviation from the applicable standard of care, supported by expert testimony, and (2) lack of informed consent because of the substitution of surgeons -- also supported by expert testimony. In summation, plaintiffs' attorney argued that four deviations from standard practice occurred: (1) failure to obtain an informed consent, (2) failure to find an attenuated ureter on May 18, (3) the delay between the two operations, and (4) the failure to splint. As will be seen, the informed consent issue was troublesome to the jury. They appeared to resolve the standard malpractice contentions based on the other three alleged deviations without difficulty.

In the original charge on informed consent the judge said:

In addition to the issues of medical malpractice to which I have just referred, the plaintiff Thomas Perna alleges as still another element of medical malpractice an issue of informed consent; that is, had he known that Dr. Pirozzi would not perform the operation he would not have consented to it. It is the plaintiff's contention that with regard to the first operation of May 18, 1977, he had given his consent to perform that operation to Dr. Pirozzi, the only doctor he knew in the group practice in which that doctor was engaged, that is, he consented to the operation based on his understanding that Dr. Pirozzi would perform it.

Now, Dr. Pirozzi and his colleagues deny that there was any express understanding that Dr. Pirozzi would perform the operation. He asserted and so did his colleagues that the rules followed by his group were that if a request were made for a particular doctor in the group that doctor is so tagged and if no such request is made any two of the group would operate. Dr. Pirozzi further contended that he had no ...

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